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Jim Newton Education. (2007) Jim Newton ('Justice for All').

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California 40, Los Angeles 15, Brown 14, Brennan 12, Johnson 9, Irwin 5, United States 3, France 3, Baker 3, Douglas 3, Warren 3, Berkeley 2, Nixon 2, Us 2, Alabama 2, Latino 2, Eisenhower 2, Stanley Reid 2, Baker V. Carr 2, Richard Nixon 2,
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  CSPAN    Book TV    Jim Newton  Education.  (2007)  
   Jim Newton ('Justice for All').  

    October 7, 2012
    6:00 - 6:59pm EDT  

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>> his ability to take a day of complex events in a courtroom and summarize it cob icily and -- concisely and clearly. he always wrote with amazing speed and great elegance. i got to know him in another capacity in the late 1990s when he was covering the charter of -- [inaudible] in los angeles as part of city government. i was chairing an elected commission in los angeles to revise the city charter, and i saw then that he not only was
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amazingly talented, but a reporter of enormous integrity. at one point he believed the los angeles times was not devoting nearly enough time to charter reform, it was important to the city, and according to los angeles weekly, he quit his position at the los angeles times in protest over this. he put his very job on the line because he believed in the importance of the story. he was then and is now an enormous star of the los angeles times. and as a result of that, the los angeles times decided to change it approach and gave tremendous attention to charter reform. i will always believe that charter reform succeeded in 1999 in los angeles because of what jim newton did and the covers of the l.a. times. a few years ago he mentioned to me he was planning to take some time off to do a biography of earl warren. i thought it was a great idea. and then i had the chance to read the book, and without a doubt it's the best judicial biography that i've ever read. so i'm thrilled that he's here
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today and ask you to join me in welcoming him. [applause] >> thank you, all, and especially irwin. thank you for coming today, for sharing your burrito with me, and i would also like to thank you for welcoming not just me, but my family and friends and my son, jack newton, is here today and my wife to whom the book is dedicated. also our friends the capels, christopher and elizabeth and sarah are here, and i thank you for welcoming them as well. i am here today to discuss a great warrior who made a better country. a good man and a good father who presided over a lovely family, a man who understood his obligations to society and fulfilled them to the best of his ability. i'm speaking, of course, about irwin. [laughter] who helped me so much with this book and who allowed me to be here today. as irwin mentioned, i have known him for more than 15 years, and i've turned to him for wisdom on
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more subjects than i can count whether it's been writing the city charter or the various trials that i covered and irwin followed from the patriot act to the challenges faced by reporters trying to do their work today amid a war on terror. i know of no person who is more fluent on more subjects or more generous and graceful with his time and knowledge. in los angeles we consider it a great act of beany sense that we have shared irwin with you, and i thank you you in turn for sharing with the nation. we are a better country because of him, and i am enormously proud that he is my friend. so with that, let me talk about another great man. earl warren. earl warren is in many respects, i think, misunderstood. sometimes by those who don't know better and sometimes by those who should, who do or at least should. in his day earl warren was
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accused of coddling criminals but, in fact, he was enraged by crime, a fact that few people know that earl warren's father was murdered in 1938, and the assailant was never found. he was accused in his day of sympathy towards communism, but, in fact, he was a fierce patriot, a veteran of world war i who prosecuted communists during his days as a district attorney. he was accused of sanctioning licentiousness when, in fact, he was actually a bit of a prude. in fact, earl warren was a deeply practical man, one shaped by his experience far more than by any ideology. and his life, i submit, offers powerful evidence that a person's upbringing can shape a life and that a life can in turn shape history. in warren's case he was formed by early 20th century california and came to embody its values. he then explored those values to the nation and, to a remarkable degree, those values help shape our lives today.
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so if you will bear with me, i'd like to talk a little bit about who earl warren really was, and in the process i hope to paint a more accurate picture of this very consequential man. earl warren was born in 1891 in los angeles where i live today. in those days it was a scrappy little mexican-american village in a very young state of california. although warren's family left los angeles when he was still quite young, there were two memories of his youth that remained with him throughout his life and that helped form the man that he would become. the first was his recollection of a young neighbor who was crying in pain as she died from a disease, probably polio or meningitis. and he wrote in his memoirs, quote, her anguished cries and the sobs of her family gave me a lasting impression after her death. he was similarly affected by the mob in 1894 when ewe screen debs -- eugene debs led the strike on the pullman car
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company. warren's father was struck with the union, and one fight the members of the union gathered in an angry growl outside of union station, the main train station in los angeles. they hung a pan in effigy, and warren -- a man in effigy, and warren watched in terror. the experience he recalled decades later gave me a hour resource of -- horror of mob action which has remained with me to this day. as a young boy, warren moves to bakersfield which was his home for the rest of his youth. bakersfield at the turn of the sent prison is not quite the o.k. corral, but it was not so different either. it was a distinctly western town of a california variety. it was a railroad depot for the southern pacific. warren's father had been blacklisted after the strike, but they were so desperate for workers in the interior of california, that they accepted him in bakersfield. bakersfield was sharply divided by class and by race, though its
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racial divisions, fundamental racial division was not so much between its white and black residents as its white and chinese population. it was a bustling center of gambling and prostitution with a thick dash of lawlessness. it's a place where a shootout on main street was still an occasional occurrence can. warren's childhood, for the most part, was pleasant enough. the family was not rich, but he and his sister were well taken care of. there was food to eat, they got books as presents on hold days, and he earned extra pay. there was also the palpable fact of life on the frontier. as a teenager he worked for the southern pacific, a company that employed his father, and the dominant economic and political force in california at the time. warren's job was to work at what was called a call boy which meant he rounded up train men and delivered them to their trains when they were called out.
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that meant dragging them out of saloons and whorehouses and the like, and it too left an impression on him. he also bore witness to the indignities of labor in those days. he saw men squander than salaries and winced as some were injured in between trains and had to be operated, amputating their injured limb. be already in his youth coming from los angeles warren carried this aversion to disorder. as a teenager, he grafted to that a distaste for vice and distrust of big business. all the strains visible as a teenager in his young life would remain a part of warren throughout his career. from bakersfield warren moved to merkley -- berkeley where he attended law school. he was, i'm sad to report, not much of a student, but he was a joiner of fraternities and maker of friends. and it was there at berkeley that he came of age just as
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california bulldozed its way into a new kind of politics in state history. the political movement that warren was witness to was, importantly from the his perspective, led by a trial lawyer. even as a somewhat shy young boy, warren had dreamed of practicing law in a courtroom, and as a college student he had the opportunity to watch up close one of the most arresting trial lawyers of his generation. hiram johnson, of whom i'm speaking, was a young lawyer in san francisco who was could upon to take over a corruption case against the city's mayor and some co-conspirators in a bribery scandal. he took over the case, he was second chair of the case at the outset but took over the first chair when the lead prosecutor was shot in the head in court by a dismissed juror. law students, take note. [laughter] it -- johnson made his name in that case and went on to serve as governor of california and to spearhead a singular political
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movement in the state's history which was the rise of the california progressives. the progressives were, by today's definitions, a bit of a hybrid, and they are sometimes also misunderstood. they were importantly not populist. it was not a pop list movement per se. they were largely middle class men, many were -- many ran small businesses. their principal target of their reform efforts was the southern pacific whose political influence they deplored and which kept them -- which shut them out of business. they loathed corruption and vice, they were quite bourgeois and moderate in their ideological politics. they managed to sort of simultaneously deplore two kind of icons of social and political culture in california at the time, the smoke-filled room and the saloon. for the smoke-filled room for them very much symbolized corporate domination of the state while the saloon stood for a sort of sweaty waste of the
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working class. in all of those respects, warren perfectly embodied progressivism. he was, in many respects, the most successful progressive in california history, arguably in national history, and as governor -- once he was elected governor in 1942, he hung just one portrait if his office, that of hiram johnson. progressivism, rather, was responsible for many good things in california. it fought corruption and championed better working conditions, it brought the state the initiative and the refer dumb and the recall, three somewhat maligned devices today but which had the effect in the early part of the century, anyway, of pulling power out of business and delivering it to voters. but progressivism also had its quite notable drawbacks, and one was that its founders were conspicuously unsympathetic to the problems of racial minorities. california's working class in the early decades of the 20th century was suspicious of immigrant labor which it saw very much as a threat, particularly asian railroad
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workers and farmers. is and the progressives helped to forge their political alliance with labor against big business by adopting some of labor's antipathy for those asians. in his case warren, too, accepted without much thought the indifference of the progressives toward minorities. that was most tragically apparent, as i'm sure some of you know, in 1942 when warren -- who was then the attorney general of california -- enthusiastically championed the interment of california's japanese and japanese-americans. their safety, as attorney general, was his responsibility. their incarceration was the nation's shame, and it was warren's as well. with his blessing and approval, the federal government incarcerated 1120,000 people who were charged with no crime. warren, i am also sad to report, never in his lifetime found the words to apologize for that act. as governor, on the other hand, he compiled a far better record. he championed universal health insurance, which is timely today
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in light of the fact that governor schwarzenegger has put forward a bill not unlike what warren tried to get through in the '40s, he supported equal housing, he raised gas taxes to pay for road construction, he -- throughout his tenure -- flawed the government to absorb waves of migrants. it is sometimes sad that california during this period roughly from the dust bowl to the end of the second world war, just after the end of the second world war was on the receiving end of the largest peaceful migrationing in human history. there's no way to know for sure how many people arrived in california in that period, but warren liked to say that it was his responsibility to provide for 10,000 new people every monday morning. among those who returned after the second world war were california's japanese, and warren -- who had encouraged their banishment -- also welcomed tear return and saw to it that they were protected as today returned to their lives. he signed the brown act which gave california its open meetings laws, and in a little-noticed act, he signed
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the bill that ended legal racial segregation in california schools. i'll return to that in just a minute. he was, through all of that, a guy gantically dominant figure in california politics. he was elected three times, 1942, 1946 and 1950, each a race of some historic importance. he is, by the way, the only person elected three times to govern california. in 1942 he beat an incumbent democrat, olson, despite fdr's popularity nationally and within the state, despite the fact that the state and country were at war. in 1950, his last election, he did one better than beating an ally of fdr, he beat fdr's son, jimmy roosevelt, by more than a million votes. and in 1946's election he achieved the remarkable and by today's standards sort of unimaginable feat of winning not only the republican party nomination for governor, but the democratic nomination as well. [laughter] yeah.
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give that a moment's thought. [laughter] um, he is the only person ever nominated by both parties to govern california. it was in 1953 that, as i'm sure many of you know, it was dwight eisenhower who tapped warren to become chief justice of the united states. in another hard-to-imagine turn of events, warren accepted that as a recess appointment and served from october of 1953 until march of 1954 without senate confirmation. he left california on a saturday and was sworn in as chief justice of the united states on monday morning. the new chief justice, as i hope i've demonstrated a bit here, health care forged very much by -- had been forged very much by california. he liked electoral politics and he was good at it, he was angered by corruption and infuriated by vice. he understood crime as a prosecutor and as a victim. he, sadly, was all too familiar with racism and had, indeed, succumbed to it, though he had also taken some steps to make
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amends. warren, thus, was as he took over the supreme court of the united states a singularly product of his upbringing, a man very much forged by his experience. sometimes i'm often asked whether warren -- excuse me -- whether warren had some sort of bout face ideologically, and i think the answer, i'm quite confident, is no. i think the right way to think of warren growing through this period is as a, this is a period of sort of steadily-expanding horizons. he had started as a prosecutor in alameda county with a limited geographic focus and a professional focus solely on law enforcement. he then became attorney general of california, broadening his geographic focus but remaining devoted to law enforcement. then as governor, of course, he had to tackle the full range of social issues, and now as chief justice he had his first opportunity to express his ideology and his upbringing on a national scale. the effect was immediately apparent in what was his first major opinion, brown v. board of
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education. the brown case had been argued before the court prior to warren's arrival and held over the previous term. it is impossible to know, i think, any fair estimation has to admit that it's impossible to know precisely how the court would have ruled under warren's predecessor. but notes from the conference under chief justice fred vincent, his predecessor, suggest that at best the court would have struck school segregation by a vote of 6-3 with vincent dissenting. at worst, it is possible that it might have gone 5-4 to uphold segregation. the latter would have been a catastrophe for race relations, but even a split vote striking school segregation could have been calamitous. it would have 'em boldened segregationists to find support for their institutions in the supreme court, particularly by its chief justice. the job confronting warren in his first term then was nothing less than a defining test of american race relations. as warren took over brown, i
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think it mattered that he came from neither north, nor south, but he was a westerner, and as such, somewhat less invested in the institutions that were being challenged and defended. also, although this was little recognized and little reported on at the time, warren had played an important role in dismantling segregated schools in the california. in 1945 a group of parents in orange county just outside of los angeles filed suit against what were then referred to as california's mexican schools. the racial alignments were barely less odious than those of the deep south. in westminster, for instance, which is a little town in orange county, there were two schools that educated elementary-age children, the westminster school had 628 anglo students and just 14 of latino heritage while the hoover school had 152 students,al of them latino. -- all of them latino. the suit was filed pre-brown, and thus in an era where the
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supreme court continued to sanction separate but equal schools. nevertheless, a district judge in los angeles struck down the mexican schools on the argument that they did violate the equal protection clause, and he was upheld on much narrower grounds by the ninth circuit. that could have ended the matter, but the ninth circuit's ruling did not force the state to address other aspects of discrimination in its schools. and as a result, if it had settled there, the state education code would still have included language that permitted separate schools for chinese and other asian students. instead, in june of 1947, warren signed the legislation that struck that language and ended all formal racial segregation in california schools. so the warren who managed the warren court, who came to the court in '53 knew racism in schools and most importantly, i think, in the context of brown he understood politics. his management of the court through that period when he had been chief, remember, for less than a year alone, i think,
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would earn him a position of greatness in american legal history. warren made it clear in his first conference in december of '53 on brown that he was, would vote with those prepared to abolish school segregation. that meant the justices, obviously, had founded each out, that meant that it was clear that the court now, that the majority had assembled behind the naacp position. he also said in that first conference that he believed that the only alternative to upholding that position was for the court to make a finding that blacks were inferior to whites. that had the effect of very much raising the stakes of this conversation. for those justices who were inclined for whatever reason not to support that position, they now stood the likelihood of being accused of doing so on quite nakedly racial terms. what warren -- if that was warren's substantive position, his sort of tactical approach also was terribly important
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here. he could have asked for a vote, in fact, it's traditional after each of the justices articulate their position, to vote. he asked that they not record a vote at that, at that conference. he was concerned that doing so would begin to solidify positions, and he was eager to talk about it. if -- instead, he brought the potential dissenters along slowly and gently. he declined to blame the south for its adoption of jim crow, and he promised justice clark, for instance, that he would not push too hard in the decree striking school segregation. he argued the to limit the ruling only to schools when he could have argued for a more sweeping condemnation of segregation in public institutions. he quite painstakingly addressed the fears of the court's advocates of judicial restraint, most notely felix frankfurter, by emphasizing that the court could find support for its decision in law and precedent. and finally, as the weeks draw on and only one dissenter was left, stanley reid, he went to
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reid and persuaded him there was no point in defending alone. this was no small achievement. reid, as early -- or as late as 1947 had refused to attend a supreme court christmas party if black pages were to be invited. he was a person very much reared in a tradition of segregation. but warren went to him as the deliberations were nearing and said, stan, you're all by yourself now. you've got to decide whether it's the best thing for the country. and faced with the choice between his patriotism and his upbringing in a segregated society, reid folded. brown was the work of a man who had seen fit just 11 years earlier to intern a people whose race made them suspect, but it was the work of a governor who had welcomed the japanese back to his state and had helped to end segregation in california schools. it was one by an experienced politician who 23450u how to lobby and tally votes. it was the first ed of warren's -- evidence of warren's life informing his judicial philosophy, but it was certainly not his last.
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let me skip ahead for a moment and say when warren prepared to leave the court in 1969, he was asked which of his roles he considered most important. naturally, i think people assumed he would pick brown, which i know was considered by many people to be the most important case of the 20th century. he surprised the reporters who posed the question by instead citing the court's work in voting rights starting with baker v. carr. those cases were, as you all know, i'm sure, monumentally significant but warren's decision to put them in the sort of first position was curious, certainly to the reporters who asked the question. i believe the reason they resonated so strongly with him, as with so many other issues, dates back to his own experience in elected political life. as governor, warren add seen little reason to quibble with california's voting system which in those years elected legislators to the assembly and the senate by two different systems that were quite common nationally at the time.
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assembly members were selected by population, and senators were chosen by county. that had the effect of giving rural counties more representative voting strength in california's legislature than urban counties. los angeles, for instance, would have had the same number of senators as one of the more remote counties in california. warren presided over that system and prospered by it. he understood that there were inequities entailed, but he accepted them, as he said later, as a matter of political expedience. but then warren became chief justice, and from that vantage point, i think, he saw what the imbalance did especially in the south. it enhanced the voting strength of whites and did so at the expense of minorities, particularly urban blacks. so with the experience of having been california's governor and the authority now of being the nation's chief justice, he struck the rules down. baker was written by william brennan, warren's closest friend and ally on the court. it established the principle that the court could intervene to consider state legislative districts. two years later in reynolds v.
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simms, completed the work of baker by overturning alabama's electoral system. so important to warren was the court's opinion in reynolds that he took it on himself to write it, and that's notable because it happened to come in the same year that warren served as chairman of the warren commission. that was an intensely-grueling and upsetting assignment for warren. he had accepted it with great reluctant, in fact, he'd initially turned it down but agreed to do it only after vonson personally urged him to do so -- johnson personally urged him to do so. as a result that year, 1964, was the most difficult of warren's life. for those ten months he would arrive at the offices quite early in the morning, sometimes at dawn, would preside over hearings until 10, would walk down the street, put on a robe, preside over the supreme court until the end of the court day, then return to the warren commission in the evening, preside over its proceedings until nighttime and then take his legal reading home with him. he was 72 years old at the time,
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um, and it was a grueling double duty. those close to him say that no period in his life took a greater toll on him either physically or emotionally. still, he kept command of his court, and he won his majority in reynolds. and his belief in voters came through loud and clear in baker and reynolds and also a number of other cases during the period. the warren court ended poll taxes and literacy tests for voters, for instance, both devices that were put in this place to restrict voting as much as possible to whites. in one sense i think it's just sort of charming just to analyze warren's faith in voters. it is not hard to understand why a person who was elected seven times would think that voters were unusually perceptive. [laughter] but i think the voting cases demonstrate more than just his personality. i mean, remember, it was the california progressives who really saw things like the referendum and the recall as the antidote to government domination and -- corporate
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domination of government and government secrecy. that was warren's tradition in the first half of the 20th century, and by the time he was done with his landmark work on the court, it was the nation's tradition as well. there are two more fields that i'd like to mention more briefly that, in which warren's life in california profoundly affected the positions he would take as chief justice. in one area he carried the court to all of our great benefit, and in the other he failed to do so, and it represents the rare instance where i would argue that we are better off for warren's inability to bring the court. as i mentioned, warren had spent much of his life as a prosecutor, and in a particular time and place. he began his life prosecuting subversives, bootlegers and gambles along with corrupt county supervisors and sheriffs. early in his life asal pee da d. a, he put away a corrupt sheriff who also happened to be a member of the ku klux klan and broke up a corruption ring in the
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oakland/alameda area that was giving away paving contracts. the political tradition he upheld in those early cases was one of clean government. his insistence in the '20s and '60s was on professionalism and fairness. those ideas expressed themselves in a historic line of cases during his tenure as chief justice. in 1961 the court ruled that illegally-seized evidence may not with introduced -- be introduced in state trials. after officers burst into her home and rifled it without a warrant. the warn court overturned the position. in is 1963 the gideon case, as u all know, clarence gideon got a new trial. in 1966, the warren court ruled in miranda that all suspects have the right to be informed of their rights, the rights we all know so well today, to remain sigh lend, to speak with an attorney. miranda also got a second trial.
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and purely sort of historical and personal terms those cases yielded somewhat mixed results. gideon was acquitted and led a good life after his acquittal. not so ernesto miranda. miranda was retried and convicted again, this time based on a confession he made to his girlfriend. he had the habit of confessing to anyone who asked. [laughter] he was freed in 1972, and two months later was stabbed to death in a bar fight. his assail hasn'ts were informed of their miranda rights, they declined to speak, they were released -- the suspects in the case were released and never reapprehended. miranda, all of those cases, were very controversial in their day, none more so than miranda. but while they were shocking notions in some part of the cup, to warren they were the national outgrowth of this lifelong insistence on mrs. and prosecute tore y'all professionalism. in one region, warren's
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upbringing did not serve him well. his aversion to vice carried over into pornography. he, he liked to say that -- his clerks recall him saying if any man showed this to one of my daughters, i'd punch him in the mouth. he had a visceral reaction to pornography which were noble instincts as a person and a father, but they did not help him through the complicated question of how much expression the first amendment protected. he tried to fashion a rule consistent with his upbringing, that the court should somehow protect the speech but punish those who peddled it. but it always begged the question of how a man or a woman, i suppose, could be put in jail for distributing something that the constitution protects. warren never solved that question and partly as a result, the warren court drifted somewhat in the pornography cases. here i think warren tried to export a lesson of his california upbringing but failed to do so. but that is the exception that highlights the rule. in one field after another, earl warren wrote law that drew upon
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his life in california and made this nation a far better and more mature place. given our time here today, i have skipped over some big cases, but let me just say in passing that the warren court also established a rule of libel, which happens to be a personal favorite of mine, and can as you know, it establishes the public officials may not recover damages from news organizations even when stories are false unless they can show that they were published with malice or recklessness. in addition, the warren court interpreted the bill of rights as implicitly adopting a theory of privacy. the bill of rights, as you know, educationless sitly -- explicitly protects speech and assembly and religious practice from government intrusion, no law may interfere with those rights. it also requires police to secure warrants, what not. together the warren court, in this case led by justice douglas, concluded that those first ten amendments established a zone of privacy around every
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person. the government may intrude on that privacy, but only after taking steps consistent with the constitution. taken as a whole, those rulings and the rest of the warren court's, the rest of the work of the warren court created a liberal libertarianism. not, i believe, a reckless variant, but rather a rational and restrained one. warren and his colleagues protected the dispossessed and empowered the government to address inequity while at the same time refusing to allow it to intrude on personal liberty. that is worthy of any western progressive. there are those today who would have you believe that what warren created was a sort of creaky architecture of liberalism, a wispy leftist fantasy, reckless in its activism and barely connected to the constitution that rooted it. that is, as a personal analysis of warren and i believe as a legal analysis of the warren court, simply wrong. warren was, for one thing, no lefty. he was the father of six, a good
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father, he was a member of the bohemian club, he was a grandmaster of the california masons. he was, as i mentioned, the veteran who had served his country in world war i, and he was a republican. and he was deeply and movingly a patriot. he was an activist, to be sure, but under his leadership here's what that activism created. segregated schools were ruled unconstitutional. so were beaches and parks and other public facilities. states that gave white voters more power than blacks were ordered to stop. poor defendants were given lawyers to represent them. police were reminded that the constitution requires a warrant before they ransack a home. people who were arrested were reminded that they had the right to a lawyer. public officials who sought to squelch dissent were warned that this was a country founded on the appreciation of disputatiousness. bureaucrats who presumed they could write prayers and order children to recite them in school were snapped back to attention with the admonition that prayer in this country is
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the rightful providence of religious leaders, not government officials. and police who took it upon themselves to arrest married couples who dared to purchase contraceptives were ordered to back off. i'd like to conclude then by asking this: which of those principles would anyone here, liberal or conservative, disavow? do any of us believe that this would be a better country if public schools discriminated by race? is inhere prepared to defend the proposition that trials would be fair beer if poor people had to defend themselves, represent themselves? would any of you want your colleagues or children to recite a prayer every morning written by george bush or mario cuomo or pat robertson? even in the area of privacy where this nation's endless depressing, and often destructive debate over abortion can cloud all other values, can we not at least agree that it is not a liberal position to maintain that the government should respect an individual's freedom. together the landmark cases of
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warren's court come comprise a vision of government that helps the neediest, a government that sets parameters of decency but recognizes its limits, that acknowledges the difference between a public school and a private home. that is a great legacy of moderation, one befitting a man who defined the political center in california and who went on to redefine it for america. it is a center that we have lost and one that we should reclaim. one where liberty and rectitude exist side by side, one where patriotism is synonymous with, not challenged by vigorous dissent, one of decency and free expression in equal measure. it is, i submit, one of justice for all. thank you. [applause] i would be delighted to take questions if anyone has any. yes, sir.
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>> you like about earl warren's biography of how he served in many levels of government, i was wondering how that sets him apart from many of the current judges on the court -- [inaudible] academics. >> it's an excellent question, and i think one of the things i was, i'm often struck by is that when warren came to the warren court, he, of course, came -- as we talked about at length -- having been governor of california, but he was far from the only person on that court to have come from a political background. in fact, five of the justices of the initial warren court had not been judges in any significant way prior to their service on the supreme court. hugo black had briefly been a night police court judge back in alabama, but he came from the united states senate. william douglas came from the sec. robert jackson had served as attorney general, and felix frankfurter, as i'm sure you know, had been a harvard law professor. i happen to believe that that breadth of experience was quite
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good for the court. i think it enlarged the personalities of the court and enriched its debate. i think it's unfortunate that the confirmation process, i think, has -- and the difficulties of the confirmation process have tended to push presidents in recent years to appoint more professional judges who are quite capable, and so i don't say that to disparage them individually, but i do think it creates a narrower, less ambitious and less free-thinking court than the one that warren inherited. i think the warren court benefited by the breadth of those justices, not just warren. what else? surely, i'm used to press conferences. yes. >> have you discovered cases in which the chief justice worked as hard and ea -- effectively as he did in brown to martial his colleagues into a less fractured position than b might have been otherwise been the case? >> warren worked very hard to build his majorities.
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brown is the one, i think, that has the greatest consequence. it is one where the necessity to deliver an opinion this addressed not just a legal issue, but the sort of underlying moral question of segregation was most enhanced by a united court. but there are throughout, there are many instances where warren had to really sort of flog his team. it became -- it was, in the initial stages of the warren court as some of you will well know, the court was quite divided into two relatively antagonistic camps, jackson and frankfurter represented a position of judicial restraint whereas black and douglas were much more activist in their orientation. interestingly, that was not ideologically split, though, and there's, you know, the phrase liberal judicial activism flows all too easily from the conservative tongue today, i think. but in those days the debate on activism was considered quite separate from an ideological debate. warren fell in quite soon with the black and douglas camp, but
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all throughout that period from his initial arrival at the court until frankfurter left and then died in the early '60s, it was a significant struggle. baker v. carr was a fierce strug within the court. so fierce, in fact, that many people believe it helped contribute to whitaker's nervous breakdown and departure from the court. once frankfurter is gone, justice -- [inaudible] represented a real voice of conservative skepticism about most of the court's work, but the intensity of the debate much lessened. and that period from roughly '62 to '68, i think, can be considered the most harmonious period in the court's, in warren's service and also the one where majorities were easiest for him to come by. yes, in the back. >> given that warren was a republican, i wonder if you could comment just a little bit on how his relationship with eisenhower changed after his appointment, and then also his decision to resign and give johnson the opportunity to name
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a successor. >> indeed. yes, johnson -- let me start with eisenhower. eisenhower was quite disappointed in warren. it is famously, although perhaps apocryphally attributed to eisenhower, i made the biggest damn fool mistake of my presidency, he's now sitting on the supreme court. there's various versions of this quote, but it is quite clear that johnson -- or, beg your pardon, that eisenhower was disappointed both in warren and in brennan. there is a infamous episode early in warren's tenure as chief justice which warren recorded in his memoirs where he went to a dinner party at the white house hosted by eisenhower, black tie dinner, stag dinner, and john davis, the lawyer for south carolina, was invited and sat within earshot of warren. warren was quite offended to be there at a time when brown was still pnding before the court, to have one of the litigants, needless to say, thurgood marshall was not invited to this party. and then even more awfully at
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the conclusion of dinner and as they were getting up to go for cigars and drinks, eisenhower took warren by the arm and gesturing to the southerners at the table said, see, these are not such bad people, they just don't want their little girl sitting next to some big negro. warren was mortified and took the effort to record that in his memoirs. um, their relationship really never recovered from that, and it was deepened by the warren court's rulings in defense of the speech and association rights of communists which eisenhower also objected to strongly. at the end of his career or nearing the end of his career, warren did try to get cute with his resignation from the court. after bobby kennedy was killed in los angeles, i think warren saw quite cleary with the experience -- clearly with the experienced political eye that he did have that nixon was the likely nominee and likely to be the next president. there is no person in warren's professional life who he detested more than richard nixon. and seeing that that was about to happen or seeing that that
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could happen, e tried to resign -- he submitted his resignation and made it contingent, he said he would leave the court upon the confirmation of his successor. today, by the way, that is not so unorthodox. sandra day o'connor did the same thing in her resignation from the court. but at the time johnson was a badly-weaken president, he was not seeking re-election, the vietnam war was upon the country. it was the summer of '68. it was too much of a stretch for johnson. johnson then appointed abe forlis who had been his personal lawyer and to whom he was very close, and the whole confirmation became a test of johnson's ability to poll on the senate, and he had lost that ability by that point. so the tragedy from warren's perspective, anyway, is that fordis' resignation bogs down, ultimately he's forced to withdraw his nomination, and warren and fordid both return to the court in '69 sort of awkwardly. warren, i suspect he could have figured out a way to stay longer
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and not give nixon the vacancy he would have done so, but the stated reason for his leaving was he'd gotten too old, and he wasn't getting any younger. so he did end up in the awkward situation of first having to swear in richard nixon and then having to give him his vacancy. as a result, as i'm sure you all know, nixon quickly got to replace two justices in that first be year of his presidency. yes, sir. >> you noted how the same man who tallied the unanimous vote in the brown case is also the one who gave the inalternativement of the japanese-americans, and you're sad to say he never found the words to apologize for that. you also say later he welcomed back the japanese-americans. did you find any other actions that may have expressed any regret or remorse? >> yes, is the answer. in fact, his memoirs include a passage in which he says i have since come to deeply regret my
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advocacy of the internment. his memoirs, unfortunately, did not come out in his lifetime, they remained unfinished at the time of his death and were sort of put together and released. one interesting thing i found, i found a copy of the manuscript that was sufficiently finished for him to send it to colleagues to sort of proofread sections, and in that it merely said i have since come to regret, and his editor added the word "deeply" after he died. he found it difficult to apologize, he was a terribly stubborn man, and i think he had a politician's aversion to saying the words "i'm sorry." it's really unfortunate, i think, in a number of respects. there was a group of japanese-americans who made a concerted effort to get him to apologize in his lifetime, and their pleas to him had this additional poignancy in light of brown because he exceeded -- he is a person who is, in fact, devoted to civil liberties, and for him to be unable to apologize to them was
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particularly hurtful, i think. there are a few other ways in which he attempted to telegraph his regrets about the internment. there was a piece of legislation during the period after his retirement from the court but prior to his death where he -- that would have been made it somewhat easier simply, it would have made it easier to carry out another internment, and warren publicly opposed the legislation and referred to the excesses of the world war ii period in that regard. those who were asking for his apology chose to accept that as an apology and move on. but he never did quite get the words out just right, and it was quite disappointing to many of them, understandably. yes. >> thank you for coming. the has been wonderful. appreciate it. i'm thinking about the dinner party incident, and that interest of terms was the principled argument that was made on behalf of segregation, not that blacks were inferior to whites, but that we all had freedom of association, and whites have just as much freedom to not to associate as blacks
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freedom to not associate. that was the thing constitutional lawyers struggled with. this was a case about discrimination, not association. so i'm wondering, when you think about the argument that was out there, his statement at the initial conference had it come out any other way would be to say blacks were inferior, that just seems really different than his approach in every other regard that you describe. because that's something, it seems to me, calculated to require stanley reid to recoil and entrench himself and say, you can forget about this. that didn't seem like a way of reaching out, saying i realize this is about association to you or etc., etc., but you have to understand these other guys are more important. >> that's a fair point. the only thing i would say, though, is it's offered up in conjunction with a very gentle approach of how to move the court forward, so it is a very firm and, you're right, statement that could invite a backlash. but it is a determination to move quite slowly from that period forward. you know, if you look at his calendars through those weeks of late '53 and '54, he lump pes --
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lunches every day with reid or clark. there was a real sense that he was going to work the room and pull his votes along quite slowly. and it could have had the effect of backing reid into a corner. every other thing about his approach was designed to avoid that and, ultimately, was successful in doing so. >> [inaudible] >> i'm sure that's right. >> was the timing of the dinner party throughout this period, the initial conference -- >> it's after the initial conference but before, before -- i want to say it was february or march of '54. and, so, yeah, a very -- it's an extremely deliberate process. the other thing to remember about his desire to move slowly and aside from the tactical issues within the court is he was still a recess appointee during this period, in rate '53 and early '54, and had the court issued a ruling in brown at the point where warren still required confirmation, it undoubtedly would have complicated his confirmation considerably. so he had personal political reasons to want to move slowly
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as well. i don't happen to think those were the dominant reasons, but that's also looming in the background throughout this period. katherine. >> since you just finished your judicial biography, i'm wondering whether you wanted to comment at all on there's a controversy brewing about what papers from living, sitting supreme court justices ought to be made available to the public, um, what former clerks ought to be able to say, sort of what's fair game in trying to get at revelation about how the court deliberates versus protecting the confidentiality of the deliberation process. and i wonder why they're there, whether you saw this or that as you were researching this book and whether anything that, you know, evidence that you would have loved to have had to write this book you couldn't have or whether you got evidence in writing this book that somebody who wants to write the biography of john roberts say 40 or 50 years isn't going to have. >> the short answer is i think
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the maximum availability of this material is, is the right way the to go. now, i say that understanding that the confidences between a judge or justice and his or her clerks help foster a certain freeness to exchange opinions. you know, i was -- and in answer to the other part of your question, there's no material that i coveted for this book that i wasn't at some way able to get. but it was not always easy. the -- by statute, the judiciary committee records of judicial, of supreme court nominations are sealed for 50 years. purely by coincidence, i would love to say this was planned on my part, but 50 years from 1954 happened to fall in 2004 which happened to be in the middle of my research, so i was there for the opening of those transcripts. justice brennan has papers that are incredibly ill husband
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straitive of warren -- illustrative of warren. a clerk for brennan pointed out very early in my research warren was a stern figure who didn't gossip readily with his clerks, but he did talk with brennan all the time, and brennan gossipped with his clerks. [laughter] so the brennan papers are a real trove of material on the warren court and on warren personally. as a result, but the brennan papers are -- and this is a long story -- are essentially divided into two parts, one which is controlled by some restricted access arrangements. brennan's son, william brennan iii, allowed me access to those paper, and they very much help to bring life, i think, to the last part of the book. and so, you know, i think that's a shame that some of the brennan papers, you know, men brennan, when he willed them to the library of congress, put certain restrictions on when batches of papers could be released. i think that's a shame because they do offer such a sort of
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vivid insight. the brennan clerks at the end of each term composed a memo that summarized the major cases of the term and every case which brennan wrote, and they'd go through the deliberations of the court and the deals, and it's their rich material unlike anything else that i'm aware of in the court files. other, you know, other little bodies of papers, the fbi file on warren which is some 2600 payments, i -- pages, i think, took a long time to get, and ask i'm lucky that my wife happens to be a first amendment lawyer and helped that along considerably. i did not feel at the end of this that there was anything that i couldn't get that i needed. but some of that court material is sort of at, a bit hard to get to. and my own view is that the ease ye -- easier it is to get to, the better off we are. and if that means there are some confidences that are revealed, you know, after the fact, well, i think on balance it seems to me that the country benefits by
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weighing in on behalf of disclosure. anyone else? finish one more? no. well, i thank you all very much. [applause] >> every sunday at 6 p.m. eastern booktv airs a program from our archives that coincides with a significant occasion that happened that week in history. for more history programming, check out american history television. ah tv features 48 hours of people and events that help document the american story. watch american history tv on c-span3 or visit c-span.org/history. >> next, booktv traveled just outside augusta to hear from colby college professor and local author larissa taylor. ms. taylor talks about her book,
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"the virgin warrior: the life and death of joan of arc." >> well, i wasn't very interested in joan of arc at the beginning at all. she seemed to me too much of an anomaly, a teenage girl who went off to fight and changed the 100 years' war. and then i saw some films in 1999, some bad ones and some good ones, but one portrayal really kind of made me think, hmm, this girl could be more interesting than i thought. and is from that i realized there were more original sources from the period about joan of ash k that almost any medieval figure including kings and queens. the typical portrayal of her is someone who is just a force of god or a force of the saints. and when i started reading the documents -- because we not only have her own voice at trial, but we have the villagers, the soldiers she fought with who testified 25 years after her death about her, and these are normally voices that are completely silent in the historical record -- and i they
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talked about her. and, for example u the vimmages would say, oh, well, she didn't want to dance with us. we made fun of her a lot. and that struck me as odd because she got the town a tax exemption, after all. and so my students were able to bring to that the idea that maybe she was a little bit bullied as a girl. and we do know from the sources that around the age of 16 when she left home for the first time, her family household had had become very repressive. her brothers were tattling on her about the fact she was going off and talking to people in other towns, and her father threatened to drown her if she went off to war. so they tried to marry her off, and joan actually was, went on her own and fought a marriage contract and won. and so she was not the fun-loving girl. she was a more than average pie cross. she would go on little pilgrimages to places and, again, was a little bit odd according to the local people.
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but she got her way. she went on two separate missions, if you will, to see the captain to try to get him to send her to the king of france. and it was only a third interview with the duke of lorraine, and at that point he gave the go ahead for her. they had a very, very mixed kind of interview because he wanted things she didn't want to give like healing him and so forth, and she said get rid of your concubine. one of the things i feel as an historian is i have to feel the places i study so i tried to trace joan's footsteps, trying to get a sense of the kind of journey she made. she went 11 days through enemy territory controlled just to get to the king. so the fact that she was willing to do that as a 17-year-old girl is astonishing to me.
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and once she was given the seal of approval after the many examinations, both theological and join cological to make sure they was a good catholic, she was fitted with armor. i've tried on versions of it myself, and it's astonishing that a 17-year-old girl could wear armor, sit on a horse. and i think that's all they wanted her to do, that she would frighten the english that way. and so when they went to, when they finally got joan ready to go, she looked the part. she already had been very outspoken and even sassy in her responses to them. and so they finally sent her. and so it was about february of 1429 when they decided to outfit her for war. excuse me, april 29th, they sent her to orleone. she'd been chomping at the bit. people who saw her said she was like a woman in labor waiting to
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have a baby, she wanted to get to war. and i think that's one of the most prominent characteristics of joan. she loved warfare. she's not this crying saint. he's a woman who is full of action, full of self-confidence and really wants to do what all of the king's men had not been able to do before this, and that was they were so, quote, chivalrous, they were giving gifts to the english and so forth. joan wanted to be at the english, and i think she had a vision that was very far ahead of its time in the sense that she imagined a france that wasn't just die fastic factions fighting amongst themselves, but there was actually one france. so it doesn't happen during her lifetime, but i think she starts creating that idea. and so she fought, the seat of orelone was lifted the week after she arrived. they won several more victories with joan actually insisting on
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being a warrior and a leader, making major decisions that could have could have gotten her in trouble. i first went to where joan was born, and it was a frontier town in her own day. it's now got only about 160 inhabitants. it was a little bit larger in the middle ages because it wassen a trade route with -- was on a trade route with burgundy. but it's very small feeling, and you get the sense that joan was a very big fish many a little -- in a little pond. and her actions later on both in warfare and also in just speaking to enemy judges or theologians shows that she really wasn't afraid of anything, including her own family. so i think she wanted to get out of the town, so she went about 8 miles to the north. she lied, by the way, to get there. and in many times in her lifetime, short lifetime she lied to get what she wanted because she had a greater mission. so finally she got the approval
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from the town where i also went, and from there i went to the loire valley, and i basically retraced her route as much as i could going to the towns on the way, st. catherine, and that's where she said that her famous sword would be found. and the only problem is she had stayed there and heard mass several times, so when she sent for it from chenault, the future king asked her if she knew it was there, and she said no. that was one of her many examples of her fabricating the truth a little bit. but she was determined to get away from home, that's one of my findings. to we, i don't use the word easily because my students do, and that's the word awe. awe that a teenage girl, even if she was helped by the court, could cothe things that she did. she really did fight. she had four major injuries, she stepped in a spike trap, she fell off a ladder when the english threw stone t at her held -- stones at her h